from the what-what?-fair-use dept

A couple years ago, we wrote about the bizarre case filed by Brownmark Films, who produced the "viral" video "What, What (In The Butt)," against South Park for doing a parody of the video.

The show had actually licensed the song, but the producers claimed that they should have also licensed the video, which is separate from the song (thus, the "singer" was not a part of the lawsuit). Viacom and South Park argued that this was clear parody and fair use and the district court not only agreed, but dumped the lawsuit without a trial on the fair use claim. Some copyright maximalists like to claim that fair use is only a defense to infringement, and thus can only be raised at trial, not earlier in the process. The loss was so complete and thorough, that the court even awarded Viacom legal fees from Brownmark -- something you rarely see in copyright lawsuits, except in the most egregious overreaches.

Brownmark appealed the ruling, and the 7th Circuit has wasted very little time in affirming the lower court ruling, which it calls "well-reasoned and delightful." The appeals court did differ slightly on the reasons a court can dump a case pre-trial when there's clearly fair use, but its quibble is really procedural, concerning which specific process should be used to claim fair use and get a bad case rejected. Either way, the key point stands: you can make your fair use claims upfront, and in truly egregious cases, courts don't have to go through a costly trial. In fact, the court notes that this makes sense, specifically to avoid copyright trolling behavior where defendants feel the need to settle rather than deal with the costs of fighting a bogus lawsuit. This is good news.

We noted during oral arguments that such a broad discovery request, surely entailing expensive e-discovery of emails or other internal communications, gives Brownmark the appearance of a "copyright troll."

Similarly, it highlights why such copyright trolling is so problematic:

...infringement
suits are often baseless shakedowns. Ruinous discovery heightens the incentive to settle rather than defend these
frivolous suits.

This seems like a very useful precedent to cite in other such cases.

The court also goes through the fair use determination and says that not only was it proper to drop the case pre-discovery, but the fair use reasoning was perfectly sound. And here, we learn that the 7th Circuit Justices enjoy themselves some viral videos:

There's a sentence I never thought I'd see in a judicial ruling. There's also a lengthy footnote that, believe it or not, discusses historical South Park episodes that demonstrates that the character Butters "has repeatedly demonstrated a lack of understanding of sex," and goes on to name the specific episodes, including "Cartman Sucks" and "Stupid Spoiled Whore Video Playset."

No matter what, this ruling is a strong victory for fair use... and just in time for our 1pm Q&A discussion about the book "Reclaiming Fair Use." Perhaps the court was just looking to provide some discussion material for us.